Will E-Verify’s Photo-Matching Tool Prevent Document Theft?

By Ann Cun
7/5/2013

For anyone following the latest debates on immigration reform, much of the bill discusses E-Verify. One question to consider: Could the photo-matching tool prescribed in the legislation be E-Verify’s answer to document theft? The answer depends on a variety of issues and contingencies. The question also presumes that identity theft can be solved by imposing a stringent work-eligibility verification system.

Fake Documents vs. Valid Documents

The E-Verify system processes its cases from both the Social Security and Department of Homeland Security (DHS) databases. “Fake” documents with false numbers would receive a nonconfirmation in the E-Verify system.

Much of the challenge with document fraud though is the use of valid documents by somebody other than the owner of the documents, effectively producing “false positives” in the E-Verify system. In this scenario, a system that is designed to tell you if the document is valid would not be able to detect if the employee is the legal owner of the documents being presented.

Photo-Matching in E-Verify

Photo-matching is already available in the E-Verify system when an employee presents any of these List A documents:

I-551 (Permanent Resident Card, aka “green card”).

Form I-766 (Employment Authorization Document).

U.S. Passport.

U.S. Passport Card.

In theory, the idea of photo-matching is relatively simple. For the employer (or employer representative), the photo that shows up on the computer screen during the E-Verify process should be the same photo on the List A document being presented to the employer.

In practice though, employers have been confused by the process and may not be adhering strictly to the instructions above. If an employer (or employer representative) looks at the computer screen and compares that image to the actual employee, then the photo-matching tool would have been used incorrectly. What happens if the photo does not look like the employee? Do the employers confront the employee? Can you imagine the awkward conversations that have transpired? What happens if the photo is an older photo of the employee, who has since undergone significant changes in his/her appearance?

Therein lies the challenge of the photo-matching tool in E-Verify. If employers adhere strictly to the rule, then valid documents will “pass” the E-Verify system and indicate work authorization, even if documents do not belong to the employee. If employers do not adhere to the rules, then they may detect “imposters.” This latter method is not encouraged by DHS.

This is one of the reasons proper training by experienced attorneys on using E-Verify can go a long way to avoiding the incorrect use of the system (in addition to awkward scenarios like described above).

Driver’s Licenses as Part of Photo-Matching?

It has yet to be seen how driver’s licenses will be incorporated into the photo-matching tool, if at all. Currently, Mississippi and Florida are the only two states that are participating in the Records and Information from DMVs for E-Verify (RIDE).

For employees presenting a List B document (identity document) for the Form I-9, the driver’s license information from those two states will be processed by E-Verify through those states’ motor vehicle agency databases to confirm the validity of the information. The photos from the driver’s licenses will not yet be part of the photo-matching tool.

An Even Bigger Question

Clearly the bigger issue is how to manage 11 million individuals already in this country who do not have legal work authorization. For argument’s sake, let’s say that E-Verify can prevent 11 million individuals who are not authorized to work from working. Exactly what are we going to do with 11 million unemployed individuals in this country?

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